Fleshner v. Tiedt et al
ORDER granting in part and denying in part 17 Motion to Dismiss for Failure to State a Claim and granting in part and denying in part 23 Motion to Dismiss. The search and seizure, conspiracy and grand jury claims are dismissed. The state law claim and excessive force claims survive. Signed by Chief Judge Linda R Reade on 3/4/2016. (NEF and order mailed to plaintiff) (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
BILLY DUANE CARD FLESHNER,
KENNETH WAYNE WILEY et al.,
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . 2
SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 3
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Excessive Force Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Search and Seizure Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Conspiracy Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Request to Convene a Grand Jury . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The matters before the court are Defendants Dan Schaefer and James E. Dickinson’s
(collectively, “State Defendants”) “Motion to Dismiss Plaintiff’s Amended Complaint”
(“State Motion”) (docket no. 17) and Defendants Matthew Tiedt, Kyle Shores, Connie
Sents, Dan Pickett and Bremer County, Iowa’s (collectively, “County Defendants”)
“Motion to Dismiss Plaintiff’s Amended Complaint” (“County Motion”) (docket no. 23).
II. RELEVANT PROCEDURAL HISTORY
On September 17, 2015, Plaintiff Billy Duane Card Fleshner filed an Amended
Complaint (docket no. 15) against Kenneth Wayne Wiley, the County Defendants, the
State Defendants and Marks Auto Repair and Wrecker Service.
In the Amended
Complaint, Fleshner asserts the following claims: (1) abuse of process under Iowa law
against Wiley; (2) excessive force against Tiedt, Shores and the State Defendants pursuant
to 42 U.S.C. § 1983; (3) unlawful search and seizure against Tiedt, Shores and the State
Defendants pursuant to 42 U.S.C. § 1983; (4) conspiracy against all Defendants pursuant
to 42 U.S.C. § 1983; and (5) a request that the court recommend an investigation by the
United States Attorney or convene a federal grand jury pursuant to Federal Rule of
Criminal Procedure 6(a). On September 22, 2015, the County Defendants filed an Answer
(docket no. 16).
On September 28, 2015, the State Defendants filed the State Motion. On November
2, 2015, Fleshner filed an untimely “Opposition to Iowa State Defendants’ Motion to
Dismiss” (“Resistance to State Motion”) (docket no. 21). On November 13, 2015, the
County Defendants filed the County Motion. On December 14, 2015, Fleshner dismissed
Defendant Marks Auto Repair and Wrecker Service from the action. See Notice of
Dismissal (docket no. 24). On January 22, 2016, Fleshner filed an untimely “Opposition
to Motion to Dismiss Plaintiffs’ Amended Complaint by Defendants Tiedt, Shores, Sents,
Pickett and Bremer County, Iowa” (“Resistance to County Motion”) (docket no. 25).
Wiley has not filed a responsive pleading to the Amended Complaint. No party has
requested oral argument on either the State Motion or the County Motion and the court
finds that oral argument is unnecessary. The matters are fully submitted and ready for
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over the § 1983 and grand jury claims
because they arise under the United States Constitution and the United States Code. See
28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”). The court has
jurisdiction over the state law claim because it is so related to the claims within the court’s
original jurisdiction that it forms part of the same case or controversy. See 28 U.S.C.
§ 1367 (“[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related
to the claims in the action within such original jurisdiction that they form part of the same
case or controversy.”).
Both the State Defendants and the County Defendants seek dismissal of all counts
against them pursuant to Federal Rule of Civil Procedure 12(b)(6). See State Motion at
1; County Motion at 1. Both the State Defendants and County Defendants also seek
dismissal or stay pursuant to Federal Rule of Civil Procedure 12(b)(1). See Brief in
Support of the State Motion (docket no. 17-1) at 9-10; Brief in Support of the County
Motion (docket no. 23-1) at 2 (stating that the County Defendants are joining the State
Motion insofar as it argues for a stay of the instant action pending final resolution of
Fleshner’s criminal case).
The County Defendants also argue that Fleshner “has
completely failed to articulate any factual specifications, or theories of liability” against
Pickett or Sents. County Motion at 1. The County Defendants further argue that
Fleshner’s service upon Defendant Bremer County, Iowa was insufficient. Id. at 2. The
court shall address each argument in turn.
As an initial matter, the court finds that Defendants’ arguments regarding Federal
Rule of 12(b)(1) are no longer appropriate. Federal Rule of Civil Procedure 12(b)(1)
provides for dismissal of a complaint on the basis of “lack of subject-matter jurisdiction.”
Fed. R. Civ. P. 12(b)(1). Defendants argue that, because Fleshner’s state proceedings
were still pending at the time the State Defendants filed the State Motion, the court should
stay the proceedings “until the conclusion of the pending criminal proceedings.” Brief in
Support of the State Motion at 10 (citing Wallace v. Kato, 549 U.S. 384, 393-94 (2007)
(“If a plaintiff files a . . . claim before he has been convicted . . . , it is within the power
of the district court, and in accord with common practice, to stay the civil action until the
criminal case or the likelihood of a criminal case is ended.”)); see also id. at 13 (citing
Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir. 2010)) (arguing that the Younger abstention
doctrine applies to the instant action because there is an ongoing state proceeding).
However, Fleshner requests that the court take judicial notice of his acquittal of the state
weapons charges at issue in the instant action. See Resistance to County Motion at 1. The
court takes judicial notice of such acquittal. See Stutzka v. McCarville, 420 F.3d 757, 760
n.2 (8th Cir. 2005) (recognizing that a court “may take judicial notice of judicial opinions
and public records); see also State v. Billy Duane Fleshner, No. 02091 AGCR007909
(Iowa Dist. Ct. 2015). The court also takes notice that Fleshner pled guilty to the charge
of interference with official acts associated with the incident giving rise to the instant
action. See State v. Billy Duane Fleshner, No. 02091 SMMG009260 (Iowa Dist. Ct.
2015). Because state charges are no longer pending, Defendants’ arguments that the
instant action should be stayed are no longer appropriate. Accordingly, the court shall
deny the State Motion and County Motion to the extent that they argue for a stay.
The court finds that the County Defendants waived the defense of insufficient
service of process and therefore cannot successfully assert that Defendant Bremer County,
Iowa was not properly served in the instant action. Rule 12(b) plainly states that a motion
pursuant to Rule 12(b)(5) “must be made before pleading if a responsive pleading is
allowed.” Fed. R. Civ. P. 12(b) (emphasis added). Federal Rule of Civil Procedure 12(h)
provides that a party waives a Rule 12(b)(5) defense if it fails to raise the defense in a
responsive pleading or in a motion made prior to a responsive pleading under Rule 12(b).
Fed. R. Civ. P. 12(h)(1)(B); see Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807,
810 (8th Cir. 1986) (“Fed. R. Civ. P. 12(g) and (h) provide that objections to . . .
insufficiency of service of process are waived unless the objections are raised in the answer
or by motion before the filing of a responsive pleading.” (emphasis added)); see also Kersh
v. Derozier, 851 F.2d 1509, 1511 (5th Cir. 1988) (holding that a defendant who filed an
answer without asserting insufficiency of service and then later moved to dismiss based on
insufficient service waived the defense). In the instant action, the County Defendants filed
their Answer prior to the County Motion and did not raise insufficient service as an
affirmative defense. Accordingly, the court finds they have waived the defense pursuant
to Rule 12(b)(5).
Technically, “a Rule 12(b)(6) motion cannot be filed after an answer has been
submitted.” However, the court finds that the County Defendants have not waived their
arguments pertaining to Rule 12(b)(6) because “Rule 12(h)(2) provides that ‘[a] defense
of failure to state a claim upon which relief can be granted’ may be advanced in a motion
for judgment on the pleadings under Rule 12(c).” Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990); see also Fed. R. Civ. P. 12(c), (h)(2)(B) (providing that a
party may assert the defense of failure to state a claim upon which relief can be granted
after the pleadings have closed pursuant to Rule 12(c)). The distinction between the
provisions of Rule 12 “is purely formal, because [the court] review[s] this 12(c) motion
under the standard that governs 12(b)(6) motions.”
Westcott, 901 F.2d at 1488.
Accordingly, the court shall treat the County Motion as if it had been styled a Rule 12(c)
Federal Rule of Civil Procedure 12(b)(6)1 provides for the dismissal of a complaint
on the basis of “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). The question for a court considering a Rule 12(b)(6) motion is not whether
the plaintiff will ultimately prevail, but rather “whether his complaint [is] sufficient to
cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011)
(citation omitted). In order to cross the federal court’s threshold, the complaint need “not
[be] a model of the careful drafter’s art,” nor need it “pin plaintiff’s claim for relief to a
precise legal theory.” Id. at 530. This is especially true when the plaintiff is appearing
pro se, which requires the court to liberally construe the pleadings. See Estelle v. Gamble,
429 U.S. 97, 106 (1976) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972));
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (citing
Estelle, 429 U.S. at 106). To be sufficient, a complaint must simply state a “plausible
‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal
argument.” Skinner, 562 U.S. at 530 (citing 5 Charles Alan Wright & Arthur A. Miller,
Federal Practice & Procedure § 1219 (3d ed. 2004 & Supp. 2010)).
In order for the statement of the plaintiff’s claim to survive a Rule 12(b)(6) motion,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility
standard “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
The court shall proceed to analyze both the State Motion and the County Motion
under the Rule 12(b)(6) standard, recognizing, however, that the court is treating the
County Motion as a Rule 12(c) motion.
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Although a plaintiff need not
provide “detailed” facts in support of his or her allegations, the “short and plain
statement” requirement of Federal Rule of Civil Procedure 8(a)(2) “demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 677-78 (quoting
Twombly, 550 U.S. at 555) (internal quotation marks omitted); see also Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not necessary [under Rule 8(a)(2)].”).
It is insufficient to “plead facts that are ‘merely consistent with’ a defendant’s liability.”
Id. at 678 (quoting Twombly, 550 U.S. at 557). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Id. (quoting Twombly, 550 U.S. at 555).
“Where the allegations show on the face of the complaint [that] there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill
Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citing Parnes v. Gateway 2000, Inc.,
122 F.3d 539, 546 (8th Cir. 1997)). Although the court must accept as true all factual
allegations contained in the Complaint, the court need not accept legal conclusions
disguised as facts. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
A. The Excessive Force Claim
“The right to be free from excessive force is a clearly established right under the
Fourth Amendment’s prohibition against unreasonable seizures of the person.” Crumley
v. City of St. Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003) (quoting Guite v. Wright,
147 F.3d 747, 750 (8th Cir. 1998)), abrogated on other grounds by Chambers v.
Pennycook, 641 F.3d 898 (8th Cir. 2011). “The violation of this right will, of course,
support a § 1983 action.” Id. “An officer’s use of force violates the Fourth Amendment
when it is objectively unreasonable, given the facts and circumstances of the particular
case, as ‘judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.’” Chambers, 641 F.3d at 905-06 (quoting Graham v.
Connor, 490 U.S. 386, 396-97 (1989)). “A de minimis use of force is insufficient to
support a claim . . . .” Id. at 906 (emphasis omitted). While demonstration of de minimis
injury is not dispositive of the issue of whether excessive force was used, the Eighth
Circuit Court of Appeals recognizes that “most plaintiffs showing only de minimis injury
can show only a corresponding de minimis use of force. The degree of injury is certainly
relevant insofar as it tends to show the amount and type of force used.” Id.
Defendants argue that Fleshner’s excessive force claim “sets forth nothing other
than a marshaling jury instruction in a use of force action” and is therefore insufficient.
Brief in Support of the State Motion at 7; see also Brief in Support of the County Motion
at 3. The State Defendants argue that the arrest in question was swift and that Fleshner
“fails in any way to allege how [the officers’] actions exceeded constitutionally acceptable
behavior, how he was injured or even if he was injured . . . .” Brief in Support of the
State Motion at 7. Defendants argue that the small round bruises under Fleshner’s right
arm are the only indicia of injury. Id.
The court disagrees and finds that the Amended Complaint sufficiently states a claim
of excessive force. Taking the facts in the Amended Complaint as true, Fleshner’s claims
that Tiedt, Shores and the State Defendants kneed Fleshner in the groin, “slamm[ed]” him
into the ground, struck or used a Taser on him and “slam[med]” him into the rear of a
patrol car are sufficient to state a claim for excessive force. See Amended Complaint
¶¶ 96-114. Fleshner asserts he suffered “small round bruises under [his] right arm” as
well as a “scraped face” and “scratched and scraped hand” See id. ¶¶ 114, 174. Such
injuries may be de minimis, but this is not dispositive of the issue and bears only on the
amount and type of force used. In any event, taking the facts in the Amended Complaint
as true, Fleshner’s assertions are sufficient to state a claim for excessive force.
Accordingly, the State Motion and County Motion shall be denied with respect to the
excessive force claim.
B. The Search and Seizure Claim
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “The law is settled that in Fourth Amendment terms a traffic stop
entails a seizure of the driver . . . .” Brendlin v. California, 551 U.S. 249, 255 (2007).
However, “any traffic violation, even a minor one, gives an officer probable cause to stop
the violator. If the officer has probable cause to stop the violator, the stop is objectively
reasonable . . . .” United States v. Bell, 86 F.3d 820, 822 (8th Cir. 1996) (citation
omitted); see also United States v. Gunnell, 775 F.3d 1079, 1083 (8th Cir. 2015) (noting
that a traffic stop is reasonable if “the police have probable cause to believe that a traffic
violation has occurred”). A police officer may make a warrantless arrest if the detainee
commits a crime in the officer’s presence. See United States v. West, 612 F.3d 993,
995-96 (8th Cir. 2010); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)
(“If an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment,
arrest the offender.”).
The Fourth Amendment further protects against unreasonable searches, “that is,
searches that are neither authorized by a warrant nor within one of the specific exceptions
to the warrant requirement.” United States v. Barraza-Maldonado, 732 F.3d 865, 867
(8th Cir. 2013). One such exception is the “inventory search” exception. United States
v. Garreau, 658 F.3d 854, 857 (8th Cir. 2011). “The inventory search exception . . .
permits law enforcement to inventory the contents of a vehicle that is lawfully taken into
custody, even without a warrant or probable cause to search.” Id. Such a search is
reasonable, and complies with the Fourth Amendment, when it is “conducted according
to standardized police procedures.” Id.
The County Defendants argue that the Amended Complaint reveals sufficient
justification for the initial stop of Fleshner’s vehicle. Brief in Support of the County
Motion at 5. They further argue that the Amended Complaint demonstrates that the
officers had probable cause to make a warrantless arrest. Id. at 5-7. Both the County
Defendants and State Defendants argue that their eventual search of Fleshner’s vehicle
constituted a valid inventory search. Id. at 7; Brief in Support of the State Motion at 9.
The court finds that the facts alleged in the Amended Complaint, taken as true,
demonstrate that the Defendants did not violate the Fourth Amendment during the traffic
stop and eventual arrest, or during the search of Fleshner’s vehicle. The Amended
Complaint states that Tiedt initially pulled Fleshner over after seeing him swerve and hit
the fog lines while driving, and after Wiley called in a complaint about Fleshner’s driving.
Amended Complaint ¶¶ 16, 20, 21. Such action provides ample justification for stopping
a vehicle. Accordingly, no Fourth Amendment violation arises from the traffic stop. See
Bell, 86 F.3d at 822.
Additionally, the State Defendants state that they “had no
involvement whatsoever in the traffic stop . . . .” Brief in Support of the State Motion at
8. The court agrees. Accordingly, the court shall grant the State Motion with respect to
Fleshner’s search and seizure claim arising from the traffic stop.
Nor did Defendants violate the Fourth Amendment when they arrested Fleshner.
After being stopped, Flesher refused to provide a driver’s license to Tiedt at his request,
and in fact was driving without a valid driver’s license. Amended Complaint ¶ 24.
Because Fleshner violated the law in Tiedt’s presence, the officers did not violate the
Fourth Amendment in subsequently arresting Fleshner. See Iowa Code §§ 321.174(1),
321.174(3) (making it a crime to operate a vehicle without a valid driver’s license and to
fail to display a valid driver’s license at a police officer’s request). Finally, after Fleshner
was placed under arrest, Tiedt and Schaefer determined that an inventory and tow of
Fleshner’s vehicle was necessary. Amended Complaint ¶ 117. Fleshner’s account of the
subsequent events fails to allege any facts suggesting that Defendants’ actions were
anything more than a valid inventory search. See Amended Complaint ¶¶ 118-54.
Therefore, Fleshner has failed to plead facts giving rise to a plausible claim that
Defendants violated his constitutional rights when they detained him, arrested him or
searched his vehicle. Accordingly, the court shall grant the State Motion and County
Motion with respect to the search and seizure claim.
C. The Conspiracy Claim
“To prove a civil conspiracy under § 1983, [Fleshner] must show (1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action to be taken; (4) the commission or one or more unlawful overt acts; and
(5) damages as the proximate result of the conspiracy.” Dean v. Cty. of Gage, Neb., 807
F.3d 931, 939 (8th Cir. 2015) (quoting Livers v. Schenck, 700 F.3d 340, 360-61 (8th Cir.
2012)). However, unless the plaintiff can demonstrate an actual constitutional violation,
there is no actionable conspiracy claim. See Draper v. City of Festus, Mo., 782 F.3d 948,
953 (8th Cir. 2015).
Because the court has determined that Fleshner has not sufficiently alleged a
constitutional violation arising out of the search and seizure claim, any conspiracy claim
arising out of the search and seizure claim necessarily fails. The court further finds that
Fleshner has not alleged any facts supporting a “meeting of the minds” with regard to
Fleshner’s excessive force claim. The Amended Complaint merely recites the elements
necessary to prove a conspiracy under § 1983 and alleges that Fleshner can prove every
element of the claim. See Amended Complaint ¶¶ 228, 229. This does not rise to the
level required to survive a Rule 12(b)(6) motion.
See Iqbal, 556 U.S. at 678. The
Amended Complaint does not provide any specific factual allegations suggesting that a
meeting of the minds occurred, and the mere fact that Fleshner has alleged specific facts
“consistent with” his theory does not cure the plain, conclusory allegations made
throughout. See id. Accordingly, the court shall grant the County Motion and State
Motion with respect to the conspiracy claim, and shall grant it as to all Defendants.2
D. The Request to Convene a Grand Jury
Federal Rule of Criminal Procedure 6(a)(1) authorizes a court to order summons
of a grand jury “[w]hen the public interest so requires.” Fed. R. Crim. P. 6(a)(1).
However, “the conduct of litigation” in criminal proceedings is broadly reserved to “the
Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516.
Generally, then, “[t]he commencement of a federal criminal case by submission of
evidence to a grand jury is ‘an executive function within the exclusive prerogative of the
Attorney General.’” Baranoski v. U.S. Attorney’s Office, 215 F. App’x 155, 156 (3d Cir.
2007) (quoting In re Persico, 522 F.2d 41, 54-55 (2d Cir. 1975)) (unpublished decision).
“The general rule is, of course, that an individual cannot bring accusations before a grand
jury unless invited to by the prosecutor or the grand jury.” In re Application of Wood, 833
F.2d 113, 116 (8th Cir. 1987). However, the Eighth Circuit also noted a “well-recognized
exception” to that general rule: a court may wield its supervisory power to “authorize an
individual to appear before a grand jury if it feels that the circumstances require.” Id.
Fleshner cites In re Application of Wood, and argues that the court should use its
supervisory authority to grant him leave to appear before a grand jury and testify. See
Amended Complaint ¶¶ 232-33; Resistance to State Motion at 4-6. The State Defendants
Though Wiley has not appeared in the instant action, the court finds that dismissal
of Fleshner’s conspiracy claim against all Defendants, including Wiley, is appropriate.
Because the controlling issues are the same for all Defendants, the controlling issues have
been briefed and Fleshner had a full and fair opportunity to address them, dismissal against
all Defendants is appropriate. See Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449
(8th Cir. 1992); see also Abagninin v. AMVAC Chemical Corp., 545 F.3d 733, 742-43
(9th Cir. 2008); Transclean Corp. v. Jiffy Lube Int’l, Inc., 474 F.3d 1298, 1308 (Fed. Cir.
2007); Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802-03 (9th
argue that this cause of action is “nonexistent” and that the court should leave the
determination of whether to commence a criminal prosecution to the Department of Justice.
Brief in Support of the State Motion at 12-13.
While it appears that the Eighth Circuit authorizes courts to inject themselves into
grand jury proceedings in extraordinary cases, the instant action does not justify such an
intrusion into the functions committed to the executive branch. Further, the case Fleshner
cites is readily distinguishable. In re Application of Wood dealt with a situation in which
the United States District Court for the District of Nebraska threatened to allow an accuser
to present evidence to a grand jury if the prosecutor did not present that evidence in
accordance with the District of Nebraska’s special instructions. 833 F.2d at 114-15. In
that case, the criminal allegations had previously been presented to the grand jury by the
United States Attorney. Id. In the instant action, Fleshner seeks to initiate new criminal
proceedings against Defendants. The court declines the invitation to encroach upon the
executive branch’s prerogative to direct the enforcement of the law. Any attempt to do so
would do violence to the separation of powers principles enshrined in the United States
Constitution. In any event, Fleshner has not convinced the court that “circumstances
require” the court to allow him to appear before a grand jury. Therefore, the court shall
grant the State Motion with regard to the grand jury claim, and shall grant it as to all
For the foregoing reasons, it is hereby ORDERED:
The State Motion (docket no. 17) is GRANTED IN PART AND DENIED
As with the court’s treatment of the conspiracy claim above, the court finds that
dismissal of Fleshner’s grand jury claim against Wiley is appropriate as well. See, e.g.,
Cathey, 977 F.2d at 449.
The County Motion (docket no. 23) is GRANTED IN PART AND
DENIED IN PART; and
The search and seizure, conspiracy and grand jury claims are DISMISSED;
The state law claim and excessive force claims survive. As stated in the
Trial Management Order (docket no. 19), trial is set for some time during
the two-week period beginning on November 7, 2016.
IT IS SO ORDERED.
DATED this 4th day of March, 2016.
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